EWTN gets last-minute stay on HHS mandate after Hobby Lobby decision

posted at 10:01 am on July 1, 2014 by Ed Morrissey

Late yesterday, the first fruits of the Hobby Lobby decision fell into the lap of EWTN, the Catholic satellite television station which has fought the HHS mandate into the appellate court. Today would have been the first day that EWTN would have to start paying ruinous fines for refusing to provide free contraception and sterilization in its health insurance coverage. Fortunately, the Eleventh Circuit granted a stay not long after the Supreme Court ruled in favor of Hobby Lobby:

In a resounding victory for religious freedom, today EWTN was granted last minute relief from the Eleventh Circuit Court of Appeals, one day before the world’s largest religious media network would be forced to violate its deeply help religious convictions or pay crippling fines to the IRS on July 1.

After the district judge recently issued a disappointing ruling against the global Catholic media network, the Becket Fund for Religious Liberty filed an emergency appeal to the Eleventh Circuit. Pending that ruling, the Becket Fund urged the Supreme Court and the Eleventh Circuit to step in to protect EWTN from being forced to provide contraceptives and potentially life-terminating drugs and devices that violate its Catholic teachings. Thanks to the Eleventh Circuit’s decision today to grant temporary emergency relief to the Catholic network, EWTN can now freely practice what it preaches while it pursues its claims in court.

“On the same day as the Hobby Lobby decision, the Eleventh Circuit protected religious ministries challenging the same government mandate,” said Lori Windham, Senior Counsel at the Becket Fund. “It’s time for the government to stop fighting ministries like EWTN and the Little Sisters of the Poor, and start respecting religious freedom.”

“We are thankful that the Eleventh Circuit protected our right to religious freedom while we pursue our case in court,” said EWTN Chairman and CEO Michael P. Warsaw. “We want to continue to practice the same Catholic faith that we preach to the world every day.”

The order itself is worth reading. The official unanimous order from the three-judge panel officially states that “we express no views on the ultimate merits of EWTN’s appeal in this case,” but that’s not true for Judge Pryor. In a 28-page concurrence, Pryor goes on at length as to why EWTN is likely to prevail on the merits of the case. And in doing so, Pryor takes particular aim at the so-called “accommodation” cited in Hobby Lobby and the arrogance of government instructing Catholic institutions on theology.

The Network has asserted, without dispute, that it “is prohibited by its religion from signing, submitting, or facilitating the transfer of the government-required certification” necessary to opt out of the mandate. The Network further asserts that, by requiring it to deliver Form 700 to the third-party administrator of its health insurance plan, the United States has forced the Network “to forego religious precepts” and instead, contrary to Catholic teachings, materially cooperate in evil. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004). If it fails to deliver that form, the Network faces $12,775,000 in penalties a year. 26 U.S.C. § 4980D(b)( 1). If that is not a substantial burden on the free exercise of religion, then it is hard to imagine what would be. …

It is neither our duty nor the duty of the United States to tell the Network that its undisputed belief is flawed. See Burwell v. Hobby Lobby Stores, Inc., No. 13-354, slip op. at 36-37 (U.S. June 30, 2014). The Supreme Court has instructed that “it is not for us to say that the line [drawn by the religious believer] was an unreasonable one. Courts should not undertake to dissect religious beliefs. . . .” Thomas v. Rev. Bd. of the Ind. Emp ‘t Sec. Div., 450 U.S. 707, 714, 101 S. Ct. 1425, 1430 (1981). The United States flouts that instruction by treating an undisputed religious belief as a disputed question of law. But “it is not for us to say that [the Network's] religious beliefs are mistaken or insubstantial.” Hobby Lobby, No. 13- 354, slip op. at 37. We must instead “determine whether the line drawn [by the Network] reflects an honest conviction, and there is no dispute that it does.” Id. at 37-38 (internal quotation marks and citation omitted).

Pryor also takes aim at other appellate circuit decisions in similar cases denying injunctive relief in the basis of the accommodation, calling their reasoning “rubbish”, emphasis mine:

I part ways with the Sixth and Seventh Circuits, which have denied injunctions in similar appeals, because the decisions of those courts are wholly unpersuasive. See Mich. Catholic Conference & Catholic Family Servs. v. Burwell, Nos. 13-2723, 13-6640, 2014 WL 2596753 (6th Cir. June 11, 2014); Univ. of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014). Both courts decided that the mandate imposes an independent obligation on the third-party administrator and that independent obligation does not constitute a substantial burden on the plaintiffs’ exercise of religion. Mich. Catholic Conference, 2014 WL 2596753, at *10; Univ. of Notre Dame, 743 F.3d at 552 (“[The University] has no right to prevent other institutions, whether the government or a health insurance company, from engaging in acts that merely offend the institution.”). Form 700, those courts held, does not “trigger” contraceptive coverage.

Rubbish. Even if the form alone does not “trigger” coverage-whatever that means-it is undeniable that the United States has compelled the Network to participate in the mandate scheme by requiring the Network not only to sign but also to deliver the form to its third-party administrator of its health insurance plan. The Network must sign a form that, on its face, states that the Network’s delivery of it is required “in order for the plan to be accommodated with respect to the contraceptive coverage requirement.” EBSA Form 700-Certification, Dep’t of Labor, http://www.dol.gov/ebsa/preventiveserviceseligibleorganization/certificationform.doc (all Internet materials as visited June 30, 2014, and available in Clerk of Court’s case file). And why must the Network provide Form 700 to its administrator? Because without the form, the administrator has no legal authority to step into the shoes of the Network and provide contraceptive coverage to the employees and beneficiaries of the Network. 78 Fed. Reg. at 39,879-80 (“[A] plan administrator is defined in ERISA section 3( 16)(A)(i) as ‘the person specifically so designated by the terms of the instrument under which the plan is operated’ . . . . [T]he self-certification is one of the instruments under which the employer’s plan is operated. . . . The self-certification . . . will be treated as a designation of the third party administrator( s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3( 16) of ERISA.”).

Form 700 is “more than an inconvenience on religious exercise” because it “requires participation in an activity prohibited by religion.” Midrash Sephardi, 366 F.3d at 1227 (emphasis added). To be sure, federal law requires contraceptive coverage whether or not the Network signs the form. But the problem in this appeal is that federal law compels the Network to act. That participation, the Network has declared, without dispute, makes it complicit in a grave moral wrong according to the teachings of the Catholic Church.

Read it all. Granted, this is one jurist’s concurrence in a temporary injunction, but the argument shows with crystal clarity why the “accommodation” does nothing to reduce the burden on free religious expression for EWTN or any other faith-based organization.

Debra Saunders has some wise counsel, especially to an administration that’s supposedly all about choice:

How did women get birth control before President Barack Obama’s Affordable Care Act? Before Obamacare, a woman could go to a doctor and get birth control. She often had to pay or make a copayment for contraception. But in the 2014 political lexicon, that means she had no access. …

Here’s a radical idea: If Washington wants to make birth control free, let Washington pay for it.

Here’s another radical idea: To paraphrase the U.S. Constitution, let Washington pass no regulations prohibiting the free exercise of religion.

The whole push for reproductive rights started as a quest to establish a woman’s right to choose. Now family-owned corporations have choice, too.

Everyone had plenty of choice before ObamaCare, too. It’s only in ObamaCare that businesses such as Hobby Lobby and organizations such as EWTN have found choice stripped from them in the command economy imposed by the ACA and by HHS.

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Here’s a radical idea: If Washington wants to make birth control free, let Washington pay for it.

This wouldn’t solve the problem for those who have a religious objection to financing birth control or the murder of unborn babies. If Washington pays for it, then we are all paying for it through taxes. In such a situation anyone who truly objects to actively participating in evil would have to seriously question whether or not they could continue to pay taxes to such a government.

Render unto Caesar ends when Caesar demands that Christians go against the commandments of God.

The fighting nun. More guts than Boehner, Graham, Cochran, et al combined. Her remarkable story is worthy of knowing. Her life is a tribute to authentic Faith….not the mush political pablum of sanctimonious ideology.

Ha. This country has seen nothing yet. Anyone read the whole bill? There are plenty of new and wonderful surprises in the bill that the HHS can unleash on the country at their discretion.

Health insurance coverage is only one of the imposition awaiting the public.

Walter L. Newton on July 1, 2014 at 10:13 AM

In 2009 I wrote an article analyzing the then bill which was enacted as ACA. Be frightened. It has nothing to do with health, health care, or access to health care. It has everything to do with control. And, the rule making authority is beyond anything that the EPA has. It is a precursor to pure tyranny. Within 10 years you will see rule making on limits to family size, forced family “planning”, euthanasia, etc. you will see controlled access based on party affiliation with the political class enjoying privileged health care much like the commie regime. Count on it. .

Barry, Michelle, Valerie, Sotomayor, Kagan, Ginsburg, Reid and Pelosi would have been happy to see Catholic nuns pay exorbitant fines for essentially not providing birth control to employees.
You cannot make this stuff up.

If Washington pays for it, then we are all paying for it through taxes. In such a situation anyone who truly objects to actively participating in evil would have to seriously question whether or not they could continue to pay taxes to such a government.

If i recall correctly, that view was put forward by some regarding taxes and the Vietnam War. The courts don’t see general revenues in that light. Congress has the power to spend the money.

Self-evident, but the entire point of the contraception requirement is to force institutions and businesses with religious convictions to chose between going out of business or betraying their convictions.

The foundation of this administration and those who promote it is spite, pure, simple and unadulterated.

The rules and regulations governing the application of the PPACA (BarryCare) were specifically designed by those at HHS/WH to attack religious practices and doctrine, and force those communities to adhere to the philosophy of The Left, under penalty of law.
The Rack, and the Executioner’s Ax, are options left on the table.

I turned it on once, thinking it might provide a little white noise for a nap. I saw the full-on penguin brigade, shuddered, and turned it off. Then I fell asleep and had nightmares of third-grade yardstick beatdowns again. And I mean beatdown.

I still say Catholics deserve having their rights squashed. They’ve been sleeping with the Dem dogs (and dog eaters) for too long.

Rix on July 1, 2014 at 10:31 AM

With all due respect, screw your intolerant self and the ignorant horse you rode in on.

Why don’t you substitute all Americans for Catholics in your sentence? After all “we” voted in Obama twice; clearly you are content to submit to having YOUR rights quashed because others in the group think its okay.

Yeah. She might catch some real strong updrafts when she’s flying like Sally Field did (for you younger, uneducated types, Sally Field was the Flying Nun on TV).

—————————————–

EWTN is a religious non-profit (according to the opinion in the court below) so they wouldn’t fall under the Hobby Lobby decision, which only applies to closely-held for-profits with religious owners.

But they have a difficult burden because of the Hobby Lobby case

Ed commented that: “This kind of substantial burden can only be sustained, under both the First Amendment and especially the RFRA, by a compelling state interest and only by the least restrictive method possible. This fails both tests….”

Unfortunately, based on dicta in the Hobby Lobby decision, it doesn’t appear this fails the “least restrictive method” test.

The Hobby Lobby decision cited with the “accommodation” which Pryor dislikes as a positive “least restrictive method” (but did not technically rule on it):

“In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. …Under that accommodation, the organization can self certify that it opposes providing coverage for particular contraceptive services. …. If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.” 45 CFR §147.131(c)(2); 26 CFR §54.9815–2713A(c)(2).38

We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.”

Everyone had plenty of choice before ObamaCare, too. It’s only in ObamaCare that businesses such as Hobby Lobby and organizations such as EWTN have found choice stripped from them in the command economy imposed by the ACA and by HHS

Now that the Supreme Court has issued its ruling in the Hobby Lobby case, the legal fight over the Affordable Care Act will shift a few blocks away to another Washington courtroom, where a far more fundamental challenge to Obamacare is about to be decided by the powerful U.S. Court of Appeals for the D.C. Circuit. Indeed, if Hobby Lobby will create complications for Obamacare, Halbig vs. Burwell could trigger a full cardiac arrest.

The Halbig case challenges the massive federal subsidies in the form of tax credits made available to people with financial need who enroll in the program. In crafting the act, Congress created incentives for states to set up health insurance exchanges and disincentives for them to opt out. The law, for example, made the subsidies available only to those enrolled in insurance plans through exchanges “established by the state.”

But despite that carrot — and to the great surprise of the administration — some 34 states opted not to establish their own exchanges, leaving it to the federal government to do so. This left the White House with a dilemma: If only those enrollees in states that created exchanges were eligible for subsidies, a huge pool of people would be unable to afford coverage, and the entire program would be in danger of collapse.

The administration’s loss in the Hobby Lobby case is a bitter pill to swallow, but it is not a lethal threat to Obamacare. For critics of the law, Halbig is everything that Hobby Lobby is not. Where Hobby Lobby exempts only closely held corporations from a portion of the ACA rules, Halbig could allow an mass exodus from the program. And like all insurance programs, it only works if large numbers are insured so that the risks are widely spread. Halbig could leave Obamacare on life support — and lead to another showdown in the Supreme Court.

If Washington pays for it, then we are all paying for it through taxes. In such a situation anyone who truly objects to actively participating in evil would have to seriously question whether or not they could continue to pay taxes to such a government.

If i recall correctly, that view was put forward by some regarding taxes and the Vietnam War. The courts don’t see general revenues in that light. Congress has the power to spend the money.

doufree on July 1, 2014 at 10:48 AM

Certainly Congress has the power to spend the money. However, individuals have the responsibility to make a choice about whether or not they can participate in financing activity that their faith teaches is immoral. If they choose not to finance government funded evil, they must be prepared to accept the consequences.

You can see the long war unfolding. The constitution is almost dead. The decision was 5-4 and did not touch the constitutional issue under the first amendment. Instead the decision focused on reconciling the RFRA (religious freedom restoration act) with barky care mandates.

The majority suggests that the government has a “compelling” interest in mandating that abortifacients be provided by private insurers. Mind you it was just a few years ago when following the Hyde amendment it was illegal to use taxpayer money to fund abortions. Kennedy in a concurrence emphasized that the decision presumed that the government has a compelling interest to provide such services and drugs to women. Ask yourself, from what enumerated power does that compelling interest arise? Why does the government have a compelling interest in providing contraceptives? The answer to both is ‘none’. So that’s how you know this was a compromise to get Kennedy on board. No sensible person can say with a straight face that the government has a compelling interest in providing party girls with contraception and abortion drugs. And, it this is nonsense which destroys the constitution. We should not even be getting to the issue of whether people of faith require an accommodation but rather why the hell is the government involved in this ridiculous nonsense at all. The original sin of this decision is the Roberts decision upholding barky care as constitutional because the penalty for not doing something is really a tax, again a perversion of the constitution’s limits on what taxes can be levied.

Also, recall that the mandate required private employers to pay the premiums to provide the crap. Barky then “accommodated” the religious organizations by changing the mandate such that those organizations didn’t have to pay the premiums but the insurance companies had to provide contraception drugs etc. We all know that the insurance company will still charge for the stuff but the costs aren’t recognizable on the premium statement. Yet it is this “accommodation” which the court suggests in the opinion as being “less intrusive” and presumably valid. In fact, Kennedy states as much. In other words, if barky had originally “accommodated” hobby lobby the same as the religious groups, then the government would have won 5-4. But barky wanted the optics of this result and the left is now in a faux uproar over nothing substantive. The leftists are playing 3d chess and we have no one playing anything but solitaire.

So if Kennedy sees a compelling state interest in this nonsense and he sees the amended religious mandate as less intrusive, how will he rule next fall when the Little Sisters of the Poor and EWTN, et al, are before him saying the mandate he claims to be less intrusive compels them to materially participate in evil. I don’t see a good outcome here. And even if they win, it is by the slightest of margins which if you think about it is really scary.

Ginsberg’s dissent is a joke. You might recall that she has spoken publicly about her contempt for the constitution and her openness to accept foreign law as guiding precedent. Her dissent is not true to what was decided but it was intentionally authored so as to state political talking points in the upcoming election. The “war on women” meme will be politics du jour.

: permission or the right to enter, get near, or make use of something or to have contact with someone

Full Definition of ACCESS
1a : onset 2
b : a fit of intense feeling : outburst
2a : permission, liberty, or ability to enter, approach, or pass to and from a place or to approach or communicate with a person or thing
b : freedom or ability to obtain or make use of something
c : a way or means of access
d : the act or an instance of accessing
3: an increase by addition

And if we (expletive) conservatives would just “get outta their way “, they would really show us how to manage this world, in a way that would be beneficial to all of the peoples of the world, not just the U.S.

I turned it on once, thinking it might provide a little white noise for a nap. I saw the full-on penguin brigade, shuddered, and turned it off. Then I fell asleep and had nightmares of third-grade yardstick beatdowns again. And I mean beatdown.

But, if they can stick a finger in Obungle’s eye … you go, girls.

M240H on July 1, 2014 at 11:26 AM

I know you didn’t mean that to be funny, but.. It made me laugh as I remembered the 12 inch wooden ruler smacking down on my palms up,open hand in the first grade. Glad I can laugh at it today, that was when children were not allowed to be misbehaving little cretins. While we should not go ” quite that far” that old time not brooking misbehavior in school would serve students better today. As in ” you, kid in 1st row, sit up straight and pay attention!”.